Genetic-Testing Fight Continues

Genetic-Testing Fight Continues

Direct-to-consumer genetic-testing companies who were served
cease-and-desist letters
by the state of California
responded this week. Some insisted that they are in compliance with state laws,
and others closed their doors to Californians. Both 23andMe and Navigenics, two
high-profile, California-based startups offering a new breed of genome-wide
screening services,
say that they will continue to operate in the state.

The letters
demanded that companies offering genome screening services directly to
consumers comply with state regulations for medical testing, which means that the
tests must be performed in certified laboratories and be ordered by a physician.
A spokeswoman for the Department of Public Health, which issued the letters,
said that the action was in response to customer complaints. On Tuesday, the department
released the names of the 13 companies that had been served letters. That list
includes well-known companies like Navigenics, 23andMe, and Decode, based in Reykjavik, Iceland.
All three companies scan the entire genome for specific genetic variations
linked to disease and then tabulate the results to offer customers a
calculation of their genetic risk for various diseases. Also included on the
list are lesser-known companies that offer an assortment of testing, such as screening
for a gene linked to hair loss and nutritional advice based on one’s genome.

At issue is whether these tests constitute clinical information.
Unlike genetic tests for simple genetic diseases, such as Huntington’s, in
which a specific genetic mutation guarantees that the bearer will develop the
disease, the genome tests use the recent flood of genetic
information to try to predict the likelihood that someone will develop a
certain disease. Theoretically, this would allow him or her to take steps to
prevent the disease; someone at risk of heart disease might take statins, for
example.

The California kerfuffle,
which follows similar action in New
York, highlights the continuing regulatory confusion
surrounding the fledgling industry. “Existing
regulations don’t really contemplate the nature of a whole genome scan,” says
Mari Baker, Navigenics’s president and chief operating officer. “And
it’s unclear as to what regulatory body this should
fall under.”

Both Navigenics and 23andMe, which released a statement but
declined further comment, say that they are in compliance with the law, using
state-certified laboratories and employing the services of a physician when
ordering tests. “We’ve been surprised and confused by
this action,” says Baker. “We spent a significant amount of time before we
launched our service analyzing and putting in place processes to comply with
the regulations.” Thus far, the state has declined to comment on its
plans, which could include legal action.

Baker argues
that Navigenics provides an information service and thus should not be
considered a clinical laboratory. The company collects DNA samples from clients
and sends them for processing to Affymetrix, a California-certified genetics
technology company. The resulting data file, which contains information on a
series of genetic variations, is then analyzed by the company to determine an individual’s
risk for different diseases. Whether that
argument will pass muster is likely to be debated at the federal level next
month. A conference convened by Mike Leavitt, secretary of the Department of
Health and Human Services, will review oversight of genetic testing,
particularly the issue of whether these services constitute clinical test
results or simply provide health information. The secretary’s advisory committee
will also review recommendations proposed in a recent report, which recommends
that the Food and Drug Administration oversee all genetic testing. Currently,
so-called laboratory tests, which include many genetic tests, are exempt from
FDA regulation.